At the punishment phase of appellant's trial, the State admitted photographs of the victim's wedding, the victim in his sailor's uniform, the victim's children, and of the victim swimming with his children. Appellant claims the photos are not relevant to any of the three issues at the punishment phase. The majority says the photos are relevant to the mitigation issue. Majority opinion at 13. The majority follows precedent in holding the photographs relevant to the mitigation issue. Mosley v. State, 983 S.W.2d 249, 262 (Tex. Crim. App. 1998)("victim impact and victim character evidence are admissible, in the context of the mitigation special issue, to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant's mitigating evidence"), cert. denied, 536 U.S. 1070 (1999). But the majority does not address the relevance of the photos to the other two punishment issues - future dangerousness and anti-parties. While there is precedent to support a holding that, in certain circumstances, victim impact and victim character evidence is relevant to the question of future dangerousness, those circumstances are not presented in this case. Moreover, there is no authority on the question of the relevance of victim impact evidence to the anti-parties issue.

Mosley stated, in dicta, that victim impact and victim character evidence was "patently irrelevant" to future dangerousness, assuming the defendant was unaware, at the time of the crime, of the victim's character or of the impact that the victim's deaths would have on others. Id. at 261 n.16. Thus, "[v]ictim impact and character evidence of which a defendant is aware at the time he commits the crime is necessarily relevant to his future dangerousness and moral culpability." Id. This discussion became a holding in Jackson v. State, 33 S.W.3d 828, 833 (Tex. Crim. App. 2000). The Court did not explain how such victim-related evidence is relevant to future dangerousness, except to state:

It is difficult to imagine how appellant could not have reasonably foreseen the impact that the victims' deaths would have on others. The victim impact evidence, therefore, was relevant to the "future dangerousness" issue.

Id. (emphasis added). So (although we don't know why or how this makes it relevant), we know that if the defendant could have reasonably foreseen the impact that the victim's death would have on others, then victim related evidence is deemed relevant to the defendant's future dangerousness. In this case, there was no evidence that appellant knew the victim or the victim's family at the time he committed the crime. Therefore, the victim impact and victim character evidence is "patently irrelevant" to the question of appellant's future danger. See Mosley, 983 S.W.2d at 261 n.16.

The jury was also given an anti-parties instruction at punishment in this case. They were asked to determine whether "appellant himself actually, caused the death of . . . the deceased, on the occasion in question, or, if he did not actually cause deceased's death, that he intended to kill the deceased or another or that he anticipated that a human life would be taken." See Tex. Code Crim. Proc. art. 37.071 § 2(b)(2). An anti-parties charge is appropriate in cases in which the jury was given a parties instruction at the guilt portion of trial. Id. An anti-parties charge is given at punishment for the purpose of "ensuring that a jury's punishment-phase deliberations are based solely upon the conduct of that defendant and not that of another party." Martinez v. State, 899 S.W.2d 655, 657 (Tex. Crim. App. 1994), cert. denied, 516 U.S. 942 (1995). The relevance of victim impact and victim character evidence to the anti-parties issue has never been addressed by this Court. Evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. The point of the anti-parties charge is to direct the jury's focus to the conduct or mental state of the defendant as opposed to that of a co-defendant or accomplice. Whether or not the defendant knew or was aware of the impact the victim's death would have on others does not have any tendency to make it more or less probable that the defendant himself, rather than an accomplice or co-defendant, "actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken."

The defendant complains about the relevance of the victim-related evidence to all three of the punishment issues, not just the mitigation issue. The majority addresses the relevance only as to the mitigation issue. ⁽¹⁾ I nonetheless concur in the result because appellant did not preserve an issue of relevance as to any of the punishment issues. Appellant's objection was based on Rule 403. ⁽²⁾ Therefore, the majority was correct to address the Rule 403 issue, but its opinion should not be read as bearing on the issue of relevance as to the future dangerousness or the anti-parties issues.

With these comments, I concur.

Delivered June 20, 2001

Publish

1. Granted, admission of the evidence may have been harmless as to the other punishment issues given its relevance to the mitigation issue and the failure of the defendant to request a limiting instruction in light of Mosley. Mosley was decided nearly a year before appellant's trial.

2. Appellant objected to the evidence as follows:

We would just state at this stage of the trial it's the prejudicial effect versus probative, and we're not here for any question to be answered as to this. As I indicated before, maybe improperly, I have a great deal of sympathy, but I don't think it's probative as to the issue that the jury now has to decide.

Appellant's objection was based on Rule 403, under which relevant evidence may nonetheless be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice . . .." Tex. R. Evid. 403. Rule 401, which defines "relevant evidence," makes no reference to "probative" value or "prejudicial versus probative" value.